ASADA case against Essendon hanging by a thread (The Age, 1 Nov 14)

[Muggs]

I am not disputing the independence of Justice Downes. And I am not disputing the appointment of retired judges to hear Royal Commissions I find it is highly unusual for a Statutory Authority to ask the Federal Government to review a case - Especially seeing that ASADA has their own legal team.

My point is was as a former he's not part of the federal court anymore.

Furthermore courts are not part of the federal government, there is a clear separation of powers entrenched in the constitution.

Next it's common in any high profile case (indeed complex cases either high profile or not) to get a second opinion. I very much doubt the size of ASADAs legal team is sufficiently big enough internally to have enough staff to have any that did not work on the case, and if so have the time, to do a review. Even if big enough "lunch room" discussions can prevent this. For this reason I've known of legal firms to hire ex judges or other legal firms to review cases in commercial matters before deciding if to proceed.

Thus need to go external for the review, so who's the best expert in the area that is available? Hmm maybe a retired president of the AAT, the body that hears appeals of the ADRVP, or a retired federal court judge that hears appeals of the AAT.

So why Gary Downes.. An expert in the field who happens to be available, why is he an expert, because of his previous roles...

 

[MaddAdam]

Think you'll find that Bruce Francis is a journalists pest. He writes to all and sundry.

Yes, those who have worked in the industry are very familiar with his type.

I suspect he holds strong views of the fluoridation of the drinking water supply and the nexus between the lawyer's cabal and the shadow government.

 

[MaddAdam]

1) Give me the precedent where a Government Department has called on the Government to review a current case
2) ASADA works under the ASADA act and is supposed to be independent of the Government
3) I am firm in my conviction. there will only be an inquiry, if both sides of politics are sure they will escape any unfavourable scrutiny

They called on government to give the FUNDING to appoint someone to review the case as I recall, very different from what you're suggesting.

 

[telsor]

Based on what has been published here I believe the AFL was approached about a potential plea bargain but rightly rejected it. The players instigated it, not the AFL.

Looks that way.

Remember when ASADA reportedly (but unconfirmed) offered deals earlier, it was supposedly due to their weak case?

What does the players desperately squirming to get a deal now mean?

 

[Muggs]

Strictly speaking the 6 month ban would require a guilty plea. Substantial assistance discount requires you to plead guilty. 12 months is what there looking at, probably with some creative backdating.

Don't need to plead guilty to get substantial assistance, this can occur any time up to the expiration of the appeal, i.e after a sentence is handed down.

14.4 AFL anti-doping code.

(c) Substantial Assistance in Discovering or Establishing Anti Doping Rule Violations
CAS or the Tribunal may, prior to a final appellate decision under Clause 17 or the expiration of the time to appeal...

http://www.afl.com.au/staticfile/AFL Tenant/AFL/Files/Schedule 6 - National Anti-Doping Code.pdf

Its only section 14.4(d) that requires you to plead guilty, and this needs to occur before you issued the results of your blood test or SCN.

 

[Muggs]

I know what you're saying but there is a difference. Even in a legal sense a finding of not guilty is different from a finding of innocence. Many prisoners have been released from jail following appeals in their favour without there being any concession as to their innocence (or any compensation for time spend in prison).

The fact is reality exists independently of our ability to prove it. The players were either administered a banned substance or they were given something else. Just because the reality can't be reconstructed to a sufficient standard of proof doesn't mean it logically follows that the players are innocent.

Personally I won't consider them innocent unless there is some evidence made public of an alternate supply chain for Thymodulin or TA1 and evidence about where the TB4 went.

In Australia courts find you guilty or not guilty - they do not have a finding of innocent. it simply does not exist in Australian law.

The only courts that have this are Scottish courts which have a finding of "not proven".

Innocent is not a verdict or finding of the court.

 

[Apex Predators]

They called on government to give the FUNDING to appoint someone to review the case as I recall, very different from what you're suggesting.

This fascination with Justice Downes is mind boggling. If the link to the Federal Government is funding, well nothing to see here as the Federal Government funds all agencies and Departments. An agency asking for more money for a specific purpose is hardly unusual.

My point is was as a former he's not part of the federal court anymore.

Furthermore courts are not part of the federal government, there is a clear separation of powers entrenched in the constitution.

Next it's common in any high profile case (indeed complex cases either high profile or not) to get a second opinion. I very much doubt the size of ASADAs legal team is sufficiently big enough internally to have enough staff to have any that did not work on the case, and if so have the time, to do a review. Even if big enough "lunch room" discussions can prevent this. For this reason I've known of legal firms to hire ex judges or other legal firms to review cases in commercial matters before deciding if to proceed.

Nice post. Obviously Yaco has never heard of the separation of powers so his comments represent his naïveté on this issue and are a classic red herring. Furthermore, as you point out, it is common for government agencies to hire people on short term contracts to provide advice on any number of issues, from reviewing processes to looking at specific issues such as the potential that a tribunal would find in favour of ASADA in this case.

Why staff ASADA or any Government Department with legal people ? Why have an Attorney Generals Department ?

A further display of naïveté and a lack of understanding. The Attorney-Generals Department is a policy agency, it is not there to give legal advice. ASADAs legal team wanting a second opinion does not seem unusual at all. When you are knee deep in an issue over a long period of time, it makes sense to get someone with the right skills to take a fresh look, particularly noting the public attention that this case is receiving.

 

[Spongebob]

Whatever you do, anyone, do not tell Yaco the bit where ASADA has used private barristers in court and at the tribunal.

I cannot be held responsible for the combined meltdown and brain explosion that my result. Hundreds upon hundreds of posts, one after the other. Thread carpet bombing on an unimaginable scale.

 

[HirdsTheWord]

Depends if the tribunal finds them innocent or not guilty - theres a difference between innocent and not guilty i believe. Malifice might be able to shed more light on this. If the players are found not guilty, its my understanding that there generally isnt the evidence to prove beyond reasonable doubt. Innocent would mean that the players have not done anything wrong.

being found Not guilty is the exact same thing as being found innocent.

If they cant provide proof than what are Essendon to be labelled? "Oh well we cant prove it but they are still guilty, just not enough proof to back it up."

That is ludicrous.

 

[The_Wookie]

being found Not guilty is the exact same thing as being found innocent.

If they cant provide proof than what are Essendon to be labelled? "Oh well we cant prove it but they are still guilty, just not enough proof to back it up."

That is ludicrous.

Theres actually a distinct difference in law.

Now whether it applies to the tribunal findings is another story.

 

[HirdsTheWord]

Theres actually a distinct difference in law.

Now whether it applies to the tribunal findings is another story.

I think you will find as someone stated above In Australia you are either found guilty or not guilty.

happy for you to link me something that disproves me though

From all the reading I have done they only refer to 2 terms. Guilty or Not Guilty or Guilty or Innocent.

They never refer to Innocent & Not guilty have specifically different meanings.

http://www.dfat.gov.au/facts/legal_system.html

 

[Laphroaig]

There is no difference between ASADA not being able to prove their case and the players being innocent. Innocence is determined, in this case, by a tribunal. It may seem an abstract concept at times, but our society is built on this concept. Either you can prove a case or you can't.

Common misconception. Not Guilty is not equal to innocent. There is a vast gap between the two.

 

[HirdsTheWord]

Common misconception. Not Guilty is not equal to innocent. There is a vast gap between the two.

Can you please link something official from the Australian Government/Courts that explains the difference. I cannot locate it.

 

[Hawkers]

One of the biggest things these events have highlighted is the fact that a vast majority of the public (well, those on BF at least) have little to no idea how Ministers, Government Departments and Agencies function and interact.

 

[Go_Blues!]

Depends if the tribunal finds them innocent or not guilty - theres a difference between innocent and not guilty i believe. Malifice might be able to shed more light on this. If the players are found not guilty, its my understanding that there generally isnt the evidence to prove beyond reasonable doubt. Innocent would mean that the players have not done anything wrong.

Wow. Nope. Innocence is presumed until proven otherwise. Under the presumption of innocence, the only condition that can remove innocence is a guilty finding. Being found not guilty, assumes innocence.

 

[HirdsTheWord]

Wow. Nope. Innocence is presumed until proven otherwise. Under the presumption of innocence, the only condition that can remove innocence is a guilty finding. Being found not guilty, assumes innocence.

wow

I agree with you for once

Nowhere in the Australian court system does it define "Innocent" and "Not Guilty" as two separate items. They are one in the same

Happy for someone to disprove this

 

[Muggs]

Theres actually a distinct difference in law.

Now whether it applies to the tribunal findings is another story.

There is no difference in law, courts simply find you either guilty or not guilty. There is no other verdicts allowed.

It's possible in the early stages of the process, such at the magistrates court or directions hearing, that a case is not allowed for insufficient evidence and never makes it to a trial stage, thus a verdict never given. Or in the judges findings after a not guilt verdict it reached there are comments that their was insufficient evidence to obtain a guilty verdict, but the verdict is not guilty.

As Go-Blues stated you are innocent until proven guilty. The very meaning of not guilty therefore is innocent.

 

[HirdsTheWord]

There is no difference in law, courts simply find you either guilty or not guilty. There is no other verdicts allowed.

It's possible in the early stages of the process, such at the magistrates court or directions hearing, that a case is not allowed for insufficient evidence and never makes it to a trial stage, thus a verdict never given. Or in the judges findings after a not guilt verdict it reached there are comments that their was insufficient evidence to obtain a guilty verdict, but the verdict is not guilty.

As Go-Blues stated you are innocent until proven guilty. The very meaning of not guilty therefore is innocent.

its just convenient for people to say they are different so they can continue talking s**t about how Essendon are guilty but there wasn't enough proof to back it up.

 

[Argy]

its just convenient for people to say they are different so they can continue talking s**t about how Essendon are guilty but there wasn't enough proof to back it up.

Well, in the real world they are different. Do you really think OJ Simpson didn't do it?

 

[Tazmania]

ASADA has their own legal team who you think would have relevant expertise. Its common for ASADA to use outside consultants like Donald Young as a fresh set of eyes to look at aspects of a case. But getting in a retired Judge to review the whole case ( this was Cronulla and EFC ) is an unusual move.

Yes but where the investigators are debating with the legal team and it's of such a high profile nature, calling in an independent reviewer is a smart step.

 

[Muggs]

One of the biggest things these events have highlighted is the fact that a vast majority of the public (well, those on BF at least) have little to no idea how Ministers, Government Departments and Agencies function and interact.

You can add how courts/tribunal function to that list.

 

[compact72]

Thread should be titled "Players hanging by a thread"

 

[Chameleon75]

Don't need to plead guilty to get substantial assistance, this can occur any time up to the expiration of the appeal, i.e after a sentence is handed down.

14.4 AFL anti-doping code.


http://www.afl.com.au/staticfile/AFL Tenant/AFL/Files/Schedule 6 - National Anti-Doping Code.pdf

Its only section 14.4(d) that requires you to plead guilty, and this needs to occur before you issued the results of your blood test or SCN.

understand that, but in practice it's difficult to be deemed cooperating, when your not cooperating.

Are you aware of anyone obtaining substantial assistance discount before when they were claiming innocence?

 

[Strapping Young Lad]

Thread should be titled "Players hanging by a thread"

How about "Essendon hanging".

 

[yeahmate]

In Australia courts find you guilty or not guilty - they do not have a finding of innocent. it simply does not exist in Australian law.

The only courts that have this are Scottish courts which have a finding of "not proven".

Innocent is not a verdict or finding of the court.

True in a "normal" court, but innocence still legally different to not guilty. Coroners court comes close to making findings of "innocence". See Lindy Chamberlains campaign for many years for a finding of innocence, David Hicks just starting out potentially. Just because you get found not guilty doesn't mean you are innocent, but for purposes like compensation, exhoneration etc there are legal processes that exist to obtain an equivalent legal status to "innocence".